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The chairman of the Federal Communications Commission has raised concerns about the Librarian of Congress's controversial decision to stop allowing consumers to unlock their own cell phones in order to take them to competing carriers. In a Wednesday interview with Techcrunch, Julius Genachowski said that the "ban raises competition concerns; it raises innovation concerns."

The Digital Millennium Copyright Act gives the Librarian of Congress the power to grant exemptions to its "anti-circumvention" provisions. In its latest round of rulemaking, the Librarian cancelled an exemption for cell phone unlocking that had been in effect for the previous six years. As a result, unlocking a cell phone purchased after January 26 in order to move it to another wireless carrier could lead to civil and perhaps even criminal penalties.

The change sparked an online backlash. Last week, a petition on the White House website attracted the 100,000 signatures required for an official White House response. Now, according to Techcrunch, the FCC will investigate the change.

While the FCC can bring greater visibility to the issue, it's not clear if the agency has any authority to fix the problem. Congress gave the power to grant exemptions to the Librarian of Congress, and the process for granting those exemptions only occurs once every three years.

But according to Techcrunch, Genachowski will be looking for ways to reverse the decision. "It’s something that we will look at at the FCC to see if we can and should enable consumers to use unlocked phones," he said.

Derek Khanna, an online activist and former Republican staffer who has helped publicize the issue, called Genachowski's pledge a "terrific development." According to Khanna, the FCC "should be investigating this. The decision is indefensible."

He pointed out that the Competitive Carriers Association, which represents Sprint, T-Mobile, and dozens of smaller wireless carriers, has called for the ban on cell phone unlocking to be repealed.

72 Reader Comments

I still wonder at the power the Library of Congress holds in dictating what I can and cannot do with a product that I paid for and own.

My existing cell phone should be fine since I bought it before January 26th. However I don't like what the implication is for my next upgrade.

I bought the cell phone. I honored the contract I agreed to and paid my bills. Now when the contract is technically over my bill will remains the same despite the fact my phone subsidy is no longer a factor in the cost, and now someone wants to tell me I can't unlock the phone and bring it a carrier of my choosing?

Its like saying "'I'm sorry sir, I know you bought the car you were leasing the last few years, but you can't just take it to any shop just because you own the damn thing."

I wish the entire DMCA was repealed. It gives way to much power to companies that have not demonstrated they can handle it responsibly. I'm all for companies making money on their products. But this allows for them to make it a crime to switch to a cheaper carrier, even after the phone is paid off by subsidies and/or end of contract penalties. There is no way that can be constitutional. There has to be a way to make it so copyright laws protect what they need to without overreaching into areas they have nothing to do with.

Once the terms of your contract have been fulfilled, it should be MANDATORY that the carrier unlock your phone. Failing that, there is no practical difference between this and the "good old days" when you could only rent your home phone from Ma Bell.

Hrm. While I applaud the idea of reversing this ridiculous change after 6 years, the precedent for reversing DMCA exemptions is somewhat troublesome. It would mean that no longer will exemptions have a guaranteed 3 year life. :-/

edit: and obviously the Draconian Millennium Copyright Act should be abolished in general.

I don't understand how unlocking a cellphone triggers any anti-circumvention measures in the DMCA. As a non US citizen and non resident, I would guess it's a case of - hard to define in law despite common sense.

It is my impression that the reason for these anti-circumvention measures is to prevent the potential for copyright infringement (bypassing DVD protections etc.). I don't see how unlocking a phone you already own has the potential for copyright infringement.

Despite being illegal, I expect this will be viewed like speeding in an isolated area. Technically illegal, but something ppl will do anyway.

"But Malor," I can hear the anguished cries. "Phone companies provide those at a loss, so they can make it up on monthly fees! They can't sell them unlocked."

But they absolutely can. They have a contract for that money. They don't need to lock the phones too, they already have a perfectly viable method of getting the customer to pay for the phone. There's a huge industry, in fact, oriented around extracting cash from people who really don't want to pay.

All they need is that contract; there's no need to lock the phones as well. That's purely an anti-competitive move, and it should not be allowed.

If this isn't repealed, you'll see the trend towards "pay as you go" carriers increase. Say what you will about them, at least the phone clearly is yours.

If they're all just repackaging the Sprint network, that's really only going to go so far. Their network is looking more decrepit every day as AT&T and Verizon both slaughter them on data throughput and availability. Sure, I'd love a pay-as-you-go plan, but not if I have to give up LTE.

If the FCC had any teeth, this would be good news. As it stands, though, I'm afraid it will end up being lip service - or might as well have been. Genachowski has to know that the larger carriers won't stand for a change of status there, and that his Commission's findings and recommendations can simply be challenged and dismissed, no matter what they might be. It makes me wonder if it's a PR move.

Such things must become matters of law, with ownership properly placed, and with an empowered body. This is misplaced with the LoC - the librarian should have exactly zero say on this, as it isn't a copyright issue. FCC? FTC? The latter, I think, though that's an open question - but the LoC is just the wrong place for it. But that's where it is now, so the man's just flappin' and making' wind.

Bought a Lumia 920 without a contract. Apparently AT&T has an exclusive deal with Nokia that gives them the right to screw over customers without a contract.

I went to AT&T's office to unlock it so that I can use a sim card from whatever carrier I choose. Their response:

"Sorry. Can't do".

The argument that I'm off contract didn't make any difference to them.

I have been punching and puncturing a voodoo doll with ATT's CEO's face stuck in it. By now he should be vomiting incessantly and having nightmares about being chased by a six feet male gorilla with a giant erection.

I don't understand how unlocking a cellphone triggers any anti-circumvention measures in the DMCA. As a non US citizen and non resident, I would guess it's a case of - hard to define in law despite common sense.

It is my impression that the reason for these anti-circumvention measures is to prevent the potential for copyright infringement (bypassing DVD protections etc.). I don't see how unlocking a phone you already own has the potential for copyright infringement.

Despite being illegal, I expect this will be viewed like speeding in an isolated area. Technically illegal, but something ppl will do anyway.

The reasoning is they are protecting their copyrighted works behind an encryption. If you attempt to break that encryption it runs afoul of the DMCAs anti-circumvention. It is effectively the same reason it is illegal to decode a dvd.

Bought a Lumia 920 without a contract. Apparently AT&T has an exclusive deal with Nokia that gives them the right to screw over customers without a contract.

I went to AT&T's office to unlock it so that I can use a sim card from whatever carrier I choose. Their response:

"Sorry. Can't do".

The argument that I'm off contract didn't make any difference to them.

I have been punching and puncturing a voodoo doll with ATT's CEO's face stuck in it. By now he should be vomiting incessantly and having nightmares about being chased by a six feet male gorilla with a giant erection.

Maybe you should contact the EFF, or other consumer advocacy group, to see if they want to use you to try to get the court to rule phone locking harmful to the public.

I don't understand how unlocking a cellphone triggers any anti-circumvention measures in the DMCA. As a non US citizen and non resident, I would guess it's a case of - hard to define in law despite common sense..

Common sense has absolutely nothing to do with law in the US regarding anti-circumvention measures, or the whole DMCA debacle really. That's what happens when the law is written by the people who make the biggest campaign contributions.

If the US, and Canada, were to have to operate on the cell phone and internet rules regarding "last mile competition" and unlocking phones that apply in most of Europe most telcom and cablecom CEO's would probably die of instant heart attacks.

If this isn't repealed, you'll see the trend towards "pay as you go" carriers increase. Say what you will about them, at least the phone clearly is yours.

If they're all just repackaging the Sprint network, that's really only going to go so far. Their network is looking more decrepit every day as AT&T and Verizon both slaughter them on data throughput and availability. Sure, I'd love a pay-as-you-go plan, but not if I have to give up LTE.

Then shut up and take it up the ass as a good little consumer.

It's up to you to decide what is more valuable and to see where things are going and decide if the future is the one you like or if it's perhaps worth giving up LTE to shift over money to retain at least some resemblance of a market. If not then I'm sure you will enjoy your LTE with monopoly pricing and policies. Data caps are always fun and best of all they can always get smaller to squeeze more money out of you independent of the true costs for the provider.

I don't understand how unlocking a cellphone triggers any anti-circumvention measures in the DMCA. As a non US citizen and non resident, I would guess it's a case of - hard to define in law despite common sense.

It is my impression that the reason for these anti-circumvention measures is to prevent the potential for copyright infringement (bypassing DVD protections etc.). I don't see how unlocking a phone you already own has the potential for copyright infringement.

Despite being illegal, I expect this will be viewed like speeding in an isolated area. Technically illegal, but something ppl will do anyway.

The reasoning is they are protecting their copyrighted works behind an encryption. If you attempt to break that encryption it runs afoul of the DMCAs anti-circumvention. It is effectively the same reason it is illegal to decode a dvd.

What copyright? If you buy an iPhone there is zero carrier branding or carrier apps on the phone cuz none are allowed by Apple. Only Apple software is on the phone.

This is one of those cases where US law should mimic EU law. Here in the EU, if you buy a phone locked to a carrier, you can unlock it by paying a fee which is established by law (not by the carrier). Let's say you paid L euros for a locked phone. The price of an unlocked phone is defined as 125% of the price you paid for the locked phone, with no discounts, sales, promotions, etc. So if a locked phone costs 100€ normally but you buy it with a 20€ discount, you pay L = 80€, and U is 1.25 * 100€ = 125€.

For unsubsidized (but locked) phones, the fee is:- Equal to U minus L, but...- Never smaller than 10€- Never larger than 25€ for phones bought over 2 years ago

For subsidized phones, the fee is:- Equal to U minus L if you bought the phone less than 6 months ago- Equal to 80% of (U-L) if you bought it between 6 and 12 months ago- Equal to 50% of (U-L) if you bought it between 12 and 24 months ago- FREE after 24 months

The only way for the consumer to get screwed under this law is for carriers to have really high prices for phones and huge discounts as well. I haven't seen that happen -- maybe the law forces the RRP to be used in the calculations.

Once the terms of your contract have been fulfilled, it should be MANDATORY that the carrier unlock your phone. Failing that, there is no practical difference between this and the "good old days" when you could only rent your home phone from Ma Bell.

Well in the EU we have that 'nice' EUCD that forbids circumvention.

But a sane judge in my country actually ruled that: Preventing the use of a sim card from another telco is not something covered by copyrights. Therefore a simlock is not a copy-protection measure and circumvention is not prohibited under the law/directive.

Every telco in the country will unloch the phone for you for free after 1 year, even if you are on a 2 year plan. Of course you will still be contractually bound to the two year plan so they will get their money anyway. But you can buy a new simlock free phone and sell your old one one year in to your contract.

Considering you can get your phone unlocked ón any streetcorner' anyway there would not be much use in the telcos resisting anyway.

I don't understand how unlocking a cellphone triggers any anti-circumvention measures in the DMCA. As a non US citizen and non resident, I would guess it's a case of - hard to define in law despite common sense.

It is my impression that the reason for these anti-circumvention measures is to prevent the potential for copyright infringement (bypassing DVD protections etc.). I don't see how unlocking a phone you already own has the potential for copyright infringement.

Despite being illegal, I expect this will be viewed like speeding in an isolated area. Technically illegal, but something ppl will do anyway.

The reasoning is they are protecting their copyrighted works behind an encryption. If you attempt to break that encryption it runs afoul of the DMCAs anti-circumvention. It is effectively the same reason it is illegal to decode a dvd.

What copyright? If you buy an iPhone there is zero carrier branding or carrier apps on the phone cuz none are allowed by Apple. Only Apple software is on the phone.

Don't get me wrong I disagree with this. But, the phone companies lock the phones and there is intellectual property that is being locked even if everyone happens to have access to it. The collateral damage of locking the ip happens to be you cannot then change the phones carrier. Also I am not 100% certain but it could be the ip that allows you to connect to their network that they are protecting.

In the end it doesn't matter what they are protecting because the dmca allows them to protect anything and prevent you from circumventing it.

I certainly hope this 'investigation' includes consideration of the Early Termination Fees that wipe out any justification for locking the handset to the carrier.

Hey, pay the full price for the phone and you can get a month to month agreement and not worry about those pesky early termination fees. You handset price would go from about $100 to over $800. You get what you pay for!

"But Malor," I can hear the anguished cries. "Phone companies provide those at a loss, so they can make it up on monthly fees! They can't sell them unlocked."

But they absolutely can. They have a contract for that money. They don't need to lock the phones too, they already have a perfectly viable method of getting the customer to pay for the phone. There's a huge industry, in fact, oriented around extracting cash from people who really don't want to pay.

All they need is that contract; there's no need to lock the phones as well. That's purely an anti-competitive move, and it should not be allowed.

You wouldn't believe how many thieves are out there. The new scam is 'credit muling' where they get someone with good credit to purchase a dozen or so high value phones on their good credit, then take the phones, unlock them, and sell them at a huge profit (some overseas, some here). The credit mule defaults after one month on their contract and disappears leaving those who pay their bills to pick up the cost of this nonsense in higher phone bills. So, no. Just having a contract doesn't do it.

I just buy SIM-free phones that are unlocked from the factory, and not full of carrier-specific bloatware. SIM-free phones attract a higher price used, so it actually costs me very little to change my phone annually, and I save a fortune using SIM-only contracts, or PAYG.

I'm on a Nexus 4 with unlimited everything for £20 a month. The phone cost me nothing, thanks to selling an iPhone 4, which I got free to replace a wrecked iPhone 4 I got off eBay, which was paid for by selling an older phone.

I don't understand how a LIBRARY can make laws instead of the elected legislative body!? Who the hell thought "that's a good idea!"?

I see a lot of people complaining about these types of things but I see these same people not give a damn when it comes election time. Well, here is where those politics that really don't interest you or that you don't care about because <insert reason here> affect you.

So, instead of complaining about who thought "that's a good idea", because we know who, why not write your representative, express to them how you'd like them to vote, and then when they ignore you get out on the street and help ensure they don't get reelected. Maybe you'll succeed, maybe you won't, but it sure beats the hell out of doing nothing but wondering why this keeps happening.

I still wonder at the power the Library of Congress holds in dictating what I can and cannot do with a product that I paid for and own.

My existing cell phone should be fine since I bought it before January 26th. However I don't like what the implication is for my next upgrade.

I bought the cell phone. I honored the contract I agreed to and paid my bills. Now when the contract is technically over my bill will remains the same despite the fact my phone subsidy is no longer a factor in the cost, and now someone wants to tell me I can't unlock the phone and bring it a carrier of my choosing?

Its like saying "'I'm sorry sir, I know you bought the car you were leasing the last few years, but you can't just take it to any shop just because you own the damn thing."

Edit: spelling

Makes me think of the PS3 I'm not allowed to use one of the advertised features on...

Between the Hush-A-Phone and Carterfone decisions, the FCC probably has more than enough authority to say the DMCA does not apply to cellular phones.

It's hard to believe now, but at one time AT&T even banned those ad-filled plastic book jackets over their printed directories as a "harm to the network"!

I'm not sure how relevant Hush-a-Phone and Carterfone are to the current situation. Back then, the FCC had clear authority over "customer premises equipment" or "CPE", which is telephonese for telephone sets and everything else the customer connected to the network -- in fact, under AT&T tariffs at the time, the customer was not allowed to connect ANYTHING to the network that wasn't authorized by AT&T and in fact, most telephone sets were hard-wired to the wall -- there was no such thing as an RJ-11 jack back then.

Anyway, I don't think the FCC has EVER regulated wireless handsets (other than technical requirements related to radio interference) in the same way that it regulated wired telephone sets. I'm sure someone will correct me if I'm wrong. I notice the chairman didn't cite to any specific FCC rules that are being violated, and that's because there are no rules that prohibit this.

I'm not saying I agree that unlocking s/b banned. I'm just suggesting (as someone else did) that the FCC's authority in this area may not be clear-cut, which is why the Chairman was not very specific in his "concerns".

I certainly hope this 'investigation' includes consideration of the Early Termination Fees that wipe out any justification for locking the handset to the carrier.

Hey, pay the full price for the phone and you can get a month to month agreement and not worry about those pesky early termination fees. You handset price would go from about $100 to over $800. You get what you pay for!

Good job addressing the carrier's rationalization for locking the handsets to their network.